IMPORTANT READ CAREFULLY. This End-User Agreement is a legal agreement between you (either an individual or a single entity) and TORViC Technologies, Inc. (“TORViC”) for the FlexTrac IP - WebAccess service that accompanies this agreement, which includes subscription service, computer software and associated media, printed materials, and "online" or electronic documentation (“License”). The License also includes any updates and supplements to the original License provided to you by TORViC. An amendment or addendum to this agreement may accompany the License. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY SUBSCRIBING TO, USING, INSTALLING, OR COPYING THE LICENSE. IF YOU DO NOT AGREE, DO NOT SUBSCRIBE TO, USE, INSTALL, OR COPY THE LICENSE; YOU MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND, IF APPLICABLE.
TERMS & CONDITIONS Definitions When used in this Agreement, the following definitions apply: Client: Client or Client’s company. End-User or Customer: Anyone trying to access Client’s Content managed by FlexTrac IP – WebAccess. FlexTrac IP – WebAccess: TORViC’s Online Client Platform for sharing IP/CTS case data and includes, all FlexTrac IP – WebAccess and IP/CTS (FlexTrac IP - CTS solution) services, End-User authentication and available functions. License: The subscription access issued by TORViC to enable a FlexTrac IP – WebAccess end-user to access IP/CTS case data content, which has been provided via FlexTrac IP – CTS (IP/CTS). Website: The website(s) owned by TORViC that utilize TORViC’s FlexTrac IP – WebAccess Platform.
Services The services covered by this Agreement include TORViC’s FlexTrac IP – WebAccess Platform, including but not limited to IP/CTS case data/content access services.
Fees Upon acceptance of signed order/contract, by TORViC, Client will receive email confirmation of TORViC’s acceptance, and deployment steps to enable FlexTrac IP – WebAccess. During the Term of the contract, Client will pay TORViC the Monthly Fee - upfront and in advance for the FlexTrac IP – WebAccess Services set forth in the order/contract, relevant to TORViC’s FlexTrac IP – WebAccess offering. In the event TORViC does not receive payment from Client, reconciling payment will become Client’s sole responsibility. TORViC will invoice Client for any shortages or outstanding payments monthly. Invoices will be electronically delivered. Payment is due upon receipt and will become delinquent thirty (30) days after the invoice date. If payment has not been received within thirty (30) days after date of invoice, TORViC will disable Client’s access to FlexTrac IP – WebAccess Services and ability to manage FlexTrac IP – WebAccess. After 30 days, TORViC, at their sole discretion - will also disable Client’s access FlexTrac IP – WebAccess Service entirely. After this time, no license requests will be fulfilled and FlexTrac IP – WebAccess Services will be unavailable until such time that full payment has been made. Client authorizes TORViC to automatically charge unpaid balance on any amounts due TORViC to the credit card provided by Client. Client agree that if this Agreement becomes effective at any time after the 1st of the month, TORViC may prorate the next invoice to reflect a full month’s charges plus a sufficient number of days to have all subsequent billing periods start on the first of the month on an monthly basis. Payment for service will be made in US dollars to TORViC. The initial payment including set-up fee and the first year of service, paid in advanced, is due with this Agreement in the amount specified in provided order/contract to Client. Should Client terminate this agreement during any 12 month period, Client will be responsible for all remaining payments that would have been due as part of the 12 month term. All payments are final/no refunds.
Term and Termination The Term of this Agreement begins on the Effective Date and ends on the date, 1 month after The Term and will automatically extend for additional periods of 1 month unless either party notifies the other that it will end the Term at the end of the Initial Term. Such notice must be given as provided herein at least 30 days prior to the end of the Initial Term. Either Party may terminate its obligations under this Agreement if the other Party breaches any material obligation under this Agreement to be performed by such other Party and fails to cure such breach within fifteen (15) days after receiving written notice of the breach from the non-breaching Party. Such notice shall specify the nature of the breach in reasonable detail. For purposes of this Agreement, a material breach of this Agreement includes, without limitation: (a) a Party's failure to pay invoices which are due and owing, including, but not limited to, the making of a statement that a Party is unable to pay an invoice, or a demonstrated inability to pay debts generally as they become due, (b) a Party's failure to fulfill its obligations in connection with the Services, including but not limited to, delivery of Deliverables as and when set forth in the SOW and (c) Client’s failure to keep the FlexTrac IP – WebAccess Technology safe from, theft, or transference to any third party. Should TORViC terminate this Agreement for Client’s breach, TORViC shall be entitled to receive as compensation, the amount of fees that it would have been entitled to receive for completion and delivery of all Deliverables that would have been due - in accordance with the schedule fees.
Obligations and Responsibilities (a) Client Obligations Client agrees to use FlexTrac IP – WebAccess services for the publishing of IP/CTS case data for its customer(s)/client(s). Client will be responsible for any breaches in the security of data that is transmitted electronically from the Client to FlexTrac IP – WebAccess and agrees to provide and implement any security measures required by TORViC for protection of the data and systems. Client must comply with any rules of operation and security procedures established by TORViC. TORViC may modify these rules and procedures from time-to-time in order to improve its services or security. Client agrees to use FlexTrac IP – WebAccess for its own business purposes in strict accordance with all applicable federal, state/provincial, and local laws and regulations and all applicable communications common carrier tariffs. Client is responsible for the accuracy of the information submitted to TORViC and submitting it in a format acceptable to TORViC. Client is responsible for the fees associated with reprocessing of transactions resulting from Client’s errors or omissions based on the fees in Section FEES. Client is expressly prohibited from selling or reselling, directly or indirectly, FlexTrac IP – WebAccess services to a third party without the written consent of TORViC. If Client is using a third party technical services TORViC to manage their FlexTrac IP – WebAccess integration and operation, the third party TORViC must agree to adhere to all Agreement policies and provisions. Client is responsible for all activities of their employees and third party technical service TORViC’s who have access to FlexTrac IP – WebAccess and will notify TORViC in the event of a change in service TORViC. In the event of a change in third party technical service TORViC’s, Client will immediately change any password access to the FlexTrac IP – WebAccess Services and alert TORViC of the change in TORViC’s. (b) TORViC Responsibilities (i) Services. During the Term and subject to this Agreement, TORViC agrees to provide the FlexTrac IP – WebAccess Services ordered by Client. Subject to Paragraph 6 below, TORViC shall provide its proprietary interface, software and such other software interfaces used by TORViC to fulfill the terms of this Agreement, including all relevant software as necessary to perform the FlexTrac IP – WebAccess Services in accordance with this Agreement. TORViC shall maintain operability on the FlexTrac IP – WebAccess Platform during the Term as necessary to meet Client’s committed Service Level Agreements as defined below. (ii) Service Level Agreement (SLA). TORViC shall maintain a 97% level of application availability and accessibility to satisfy Client’s committed performance and quality of service levels.
Indemnification Client is solely responsible for security and content managed by FlexTrac IP – WebAccess. Client is also responsible for insuring that they are the rightful owner or licensee for any private, copyrighted material, trademarks, or items that appear in Client’s content managed by FlexTrac IP – WebAccess. Client and Client's customers employing FlexTrac IP - WebAccess will take all necessary measures to preclude TORViC from being made a party to any lawsuit or claim regarding the service provided by Client, or any end user. Client and client's customer hereby agree to indemnify TORViC and hold TORViC harmless from any and all claims of whatever nature brought by any anyone using the service Client provide against TORViC in excess of the remedy set forth herein.
Limitations of Liability TORViC WILL UTILIZE ITS BEST EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE FlexTrac IP – WebAccess SERVICE, BUT TORViC MAKES ABSOLUTELY NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TORViC cannot guarantee continuous service, service at any particular time, or integrity of data stored or transmitted via its system or via the Internet. TORViC will not be liable for the inadvertent disclosure of, or corruption or erasure of, data transmitted, received, or stored on its system. TORViC will not be liable to Client or any of Client customers for any claims or damages which may be suffered by Client or Client customers, including, but not limited to, losses or damages of any and every nature, resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-delivery, or service interruptions whether or not caused by TORViC’s fault or negligence. TORViC may discontinue any service, or may require fulfillment of conditions TORViC may choose to impose as a prerequisite for continuing any service upon thirty (30) days’ notice to Client. However, TORViC may discontinue service immediately for fraud committed by Client or Client employees, illegal activity, or violations of its policies. TORViC’s liability to Client and any end user of the service or any other of its services is limited to the amount paid to and received by TORViC for service not accepted. In no event will TORViC be liable to Client, or any end user or any other entity for any special, consequential, or other damages, however caused, whether for breach of contract, negligence or otherwise, even if TORViC has been advised of the possibility of such damage.
Proprietary Rights, Security, Confidentiality, and Access Any attempt to gain access to TORVIC’s FlexTrac IP – WebAccess Platform source by Client, or anyone directly or indirectly associated or related to Client, however remotely, will constitute a material breach of this Agreement. In the event of any such attempt to gain access to source, TORViC may immediately terminate this Agreement, and Client will immediately return to TORViC all copies of any information obtained by this access. Client and TORViC mutually agree that: 1. Each party owns their own intellectual property, databases, systems, trade secrets, trademarks, patents and that nothing in this Agreement transfers any rights to these to the other. 2. Protection of the others confidential information will be based on the same standard of care that each party applies to its own confidential information. 3. If either party becomes subject to a claim from a third party of patent, trademark, or copyright infringement, the party subject to the claim will indemnify the other for all costs associated with the infringement claim. 4. Each may use the trade name and trademarks of the other in advertising in any media as part of a “client list”. Any other use of either party’s name or trademark must be approved in writing.
Invalid or Unenforceable Provisions If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. Client and TORViC agree to renegotiate in good faith any term held invalid and to be bound by any mutually agreed to substitute provision.
Governing Law and Disputes This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to conflict of laws principles. All actions and proceedings arising out of or relating to this Agreement shall be brought solely in the State or federal courts of Delaware. TORViC and Client each hereby irrevocably submit to the jurisdiction of such courts in any such action or proceeding, and hereby irrevocably agree that all claims in respect of any such action or proceeding may be heard and determined in such courts.
Assignment Client’s rights and obligations under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of TORViC, which consent will not be unreasonably refused. In the event that Client’s business location covered by this Agreement should be transferred to or acquired by another company, this Agreement shall transfer with the ownership of the location and will continue in force until the end of the then current term of the Agreement. This Agreement may be assigned to another party by TORViC.
Notice Whenever either party is required or desires to give notice hereunder it shall be in writing and shall be deemed given when physically received by the other party.
Construction The headings of sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. As used in this Agreement, the word “including” means “including but not limited to,” and the word “will” shall be equivalent in meaning to the word “shall,” both of which describe a mandatory act or forbearance. Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. This Agreement was prepared in the English language, and the English-language version of this Agreement will prevail over any translations. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Entire Agreement; Modifications This Agreement sets forth the entire Agreement and understanding between the parties and merges all prior discussion between them. This Agreement may not be modified by TORViC at any time and does not require any whatsoever written consent of any party.
